Interesting, but I don't think it suggests the Court will take the case. There's still no split in the circuits, and there probably never will be, and I'm holding to my theory that the Court has decided to decide by not deciding. Within that theory, Justice Kennedy is only slowing things down a little and keeping a feeling of procedural regularity while the government petitions for certiorari and the Court denies it.

Justice Kennedy, the member of the court responsible for hearing emergency applications from the Ninth Circuit, entered a temporary stay on Wednesday morning on very short notice after a last-minute request from officials in Idaho. He acted so quickly that he included Nevada in his order.

A few hours later, Justice Kennedy issued a revised order, limiting the stay to Idaho.

If anyone hasn't seen this or read it, I think it's a rather good read about the dangers of the "process" that we're using here to get to the current result of these overturned bans. It's a long read but I'd be interested in other peoples' comments about it.

To wit, one can only claim to be “interpreting” in the first place if one acknowledges that the text under review was intended as a text and therefore imbued with intent, signified prior to engagement with it (with legal texts, there are specific conventions that are followed, deemed essential to the process, to make interpretative decisions more transparent and universally clear, namely, the dictate that the intent be readily gleaned from the text upon a superficial, “reasonable” standard, preventing intent not properly signified from holding sway in the legal sphere, assuring the polity that no “penumbras and emanations” will be cited, or that what has been insisted upon by legislators aren’t “taxes” somehow magically become taxes in the hands of a motivated rewriter of statutes, though that, too, has been discarded in practice); or to put it in the way I’ve always tried to explain it, process matters, how you get there matters, and if we allow the ends to justify the means, we are no longer a nation of laws but rather a nation of subjects and a select few philosopher kings pretending to hold sway in a republic that no longer exists.

Althouse, do you really think there won't be a split? The Fifth Circuit currently has before it the gay marriage bans in Louisiana and Texas, and the Court just agreed to fast-track the Texas case. Why else stay these marriages in Idaho and Nevada if the Supreme Court doesn't anticipate the Fifth Circuit creating a split, and thus the need for a Supreme Court decision?

"Because our courts have, in addition to extending their authority to rule on matters not expressly in their purview, taken to doing what so many “interpreters,” freed from originalism or the intentionalist nature of any form or coherent activity identifying itself as interpretation, have done: become adept at reasoning backward from a preconceived end in order to justify that end legally by way of manipulation of language and the abnegation of intent — that is, rewriting the text by resignifying it to match their own ideological agendas. To wit, one can only claim to be “interpreting” in the first place if one acknowledges that the text under review was intended as a text and therefore imbued with intent, signified prior to engagement with it (with legal texts, there are specific conventions that are followed, deemed essential to the process, to make interpretative decisions more transparent and universally clear, namely, the dictate that the intent be readily gleaned from the text upon a superficial, “reasonable” standard, preventing intent not properly signified from holding sway in the legal sphere, assuring the polity that no “penumbras and emanations” will be cited, or that what has been insisted upon by legislators aren’t “taxes” somehow magically become taxes in the hands of a motivated rewriter of statutes, though that, too, has been discarded in practice); or to put it in the way I’ve always tried to explain it, process matters, how you get there matters, and if we allow the ends to justify the means, we are no longer a nation of laws but rather a nation of subjects and a select few philosopher kings pretending to hold sway in a republic that no longer exists."

Marriage isn't in the Constitution - straight, gay, multiple or intrafamilial. But just like Roe and Lawrence, judges are using their own enlightened and clearly superior feelings to drag the rather icky hoi polloi forward.

Oh, we'll let the rubes vote for "representatives" and pretend they have free speech & association rights, but when they offend our sensibilities, we'll bring that gavel DOWN.

Seriously. Everything after the first comma is superfluous, and everything prior to it could be rewritten as "You cannot 'interpret' a text unless it was written with a specific intent".

He's wrong about that, too. You can, and usually should, interpret laws based on what they say, not on what their authors wanted. Particularly because jurists have neither ESP nor the power to speak with the dead.

OK, so here's my read, which is no more/no less authoritative than Althouse's: Mr. Justice Swing-Vote has just sent a signal to the Circuit Judges that he is NOT committed to the notion that State law/constitution provisions that recognize only heterosexual marriage are unconstitutional. He is saying: Bring me a case in which the Circuit Court upholds such a State law/constitutional provision, and we'll see what happens.

Remember: an awful lot of people out here are hoping that one or more of the liberal judges will be replaced in the next administration. They still believe, and the court has effectively politicized itself in many eyes.

Apparently, you think "politicized" and liberal are the same thing. Remember, the most politicized decision in recent history was a 5-4 decision by the conservative majority.

"For Scalia, “words” are signs. After all, he wouldn’t argue that the text of a statute printed on a computer screen says something different than the text of a statute that appears on paper merely because the fonts have changed. And so when he maintains that he “doesn’t care” about intent, he is mistaken: he has already assumed intent, because otherwise, he couldn’t see signs as signs, or (to borrow his terminology) words as words. So he is an intentionalist, as are we all. Looked at from the perspective of language, then, Scalia’s argument is essentially this: “I don’t care about words; I care about words.” Which, good for him.

From there, it is simple to track the errors in his description of what he thinks he’s doing as opposed to what he’s actually doing. First, when Scalia says, “I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words,” what he is saying is “I take the intended signs as they were promulgated to the people of the United States, and what is the fairly understood meaning of those intended signs.” Second, what Scalia means by “fairly understood” is that he will assume, as part of legal convention (and so itself a convention of a convention), that the legislators whose job it is to write the laws have written those laws in such a way that their intent will be clear.

What follows, then, is Scalia interpreting the intended text of the law with the presupposition in mind that the writers were hoping to clearly signal their intent. And so his interpretation factors in that implied promise on the part of the intending legislators as a legal convention.

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with."

Oh please. If you discount author intent don't pretend you are "interpreting" what you are doing is rewriting the text to reflect what YOU want it to say.

You have that exactly backwards. People who follow the law as written... follow the law as written. It is people who say "oh, it doesn't matter what the law SAYS, it matters what the author MEANT" -- people like Barack Obama, for example -- who rewrite the law to serve their own ends.

It is 100% impossible to know what the intent of each and every person who voted for a law was. People who say they are interpreting based on "intent" are a pack of fucking liars.

People who follow the law as written... follow the law as written. It is people who say "oh, it doesn't matter what the law SAYS, it matters what the author MEANT" -- people like Barack Obama, for example -- who rewrite the law to serve their own ends.

Oh geez, so much studied ignorance to unpack

Do laws write themselves? How do you know you're looked at a written law and not mere marks made by a mouse scurrying across the paper with inky paws?

When *I* want to communicate with *you* I can grunt, point, gesture or use WORDS (signs) that you will either use to grasp my INTENT or not. If you don't grasp my intent, it is either because I have failed at adequately signaling or you wish to pretend to understand and you then make up your own meaning.

Words mean nothing on their own. Their "conventionally accepting MEANING" is due to people accepting that >>this sign<< will mean >>this thing<< under >>this context<<

Was Swift really talking about eating Irish babies, or was he doing satire? Is someone who ignores Swift's intent (satire) and "interprets" them to mean "let's eat Irish babies" right or wrong?

Was Charles Manson "interpreting" when he used pointed to the "secret messages" the Beatles White Album, or was he just making up sh*t by imposing his OWN meaning on lyrics to enable his murderous fantasies?

There is not one example of Obama engaging in interpreting authorial intent -- like Manson, he just makes up sh*t.

SCOTUS-watchers do it ALL the time, and I've done it and blogged about it on other occasions, but still:

You have to be very careful trying to predict what the SCOTUS is eventually going to do based on thin tea leaves like this. Decisions that are "on the merits" and that will have precedential effect, whose holdings will be deemed authoritative by and binding upon future courts, are made very differently than either decisions on cert petitions or decisions on stay applications.

On stay applications in particular, the SCOTUS uses a sliding scale. If the risks are very, very immediate and irremediable — the classic example being a brink-of-execution stay application in a death penalty case — the showing that must be made on other elements can be pretty thin. Those other elements include "probability of success," which is the SCOTUS' non-binding and never-revealed assessment of how the case seems likely to go when and if the SCOTUS eventually does consider it "on the merits."

So I think it's quite a bit more accurate to read Kennedy's stay order simply as his acknowledgement that this is a case which affects at least one or two states very urgently and importantly. Even if you think the law is no longer in doubt (of which I'm unconvinced), it's topical and controversial. His stay order stops things long enough for the other side to respond, but if it's to be maintained for much longer, he'd likely refer it for decision by the full SCOTUS (rather than acting alone as Circuit Justice).

I'm not yet convinced that the SCOTUS will never take a SSM case. But I'm convinced they won't unless and until there is a split among the circuits or, on a longer term basis, a change in the composition of the Court. I expect that this stay will end up being dissolved in a matter of hours or days.

If anyone is wondering whether my two earlier comments are inconsistent:

I respect Mr. Justice Kennedy's service and career and position, and overall I agree with him more often than not. But I think his recent constitutional scholarship (which is only a portion of what the SCOTUS does) has been right up there with, oh, the late Mr. Justice Blackmun — and similarly disastrous for the Nation. He's a very confused puppy, and he's slipping on banana peels left behind by Madame Justice O'Connor.

Nevertheless: He's not a loose cannon and he respects the processes of the SCOTUS. None of the current Justices abuses his or her responsibilities as Circuit Justices.

(Also I shouldn't have said "never-revealed assessment of how the case seems likely to go." Sometimes a Circuit Justice, or the Court per curiam, will comment on the factors and how they were evaluated in deciding whether the stay should or shouldn't be granted.

But more often those decisions are announced with a one-or-two line bare-bones result.

"I'm not yet convinced that the SCOTUS will never take a SSM case. But I'm convinced they won't unless and until there is a split among the circuits or, on a longer term basis, a change in the composition of the Court. I expect that this stay will end up being dissolved in a matter of hours or days."

As I've said, I think they won't take a case unless there's a split, but they will if there is. And I think there probably will never be a split at this point.